EXHIBIT 10.34
FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT
This FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT (the "Fifth Amendment")
is entered into by and between WIREDZONE PROPERTY, L.P., successor-in-interest
to Chevron U.S.A., Inc. ("Landlord"), with its address for notice at 0000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and TELESCAN, INC.
("Tenant"), with its address for notice at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx
00000. Unless otherwise defined herein, all capitalized terms used herein shall
have the same meaning as ascribed to such terms in the Lease (as hereinafter
defined).
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of that certain Office Lease
Agreement dated November 8, 1995 (as amended from time to time, the "Lease"),
executed by Landlord, as landlord, and Tenant, as tenant, Tenant leased the
Premises;
WHEREAS, the initial Lease Term will expire by its terms on January 31,
2007;
WHEREAS, Tenant has requested that Landlord modify the Term of the
Lease and relocate the Premises to certain space located in Suite LL-250 of the
Building, and Landlord and Tenant now desire to amend certain terms and
provisions of the Lease in order to reflect such reduction in Lease Term and
Premises relocation and to memorialize certain other agreements and
clarifications between the parties.
NOW, THEREFORE, for and in consideration of the premises, the
agreements and covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed, Landlord and Tenant do hereby expressly agree, covenant and
acknowledge as follows:
1. TERM OF LEASE. Landlord and Tenant agree that the Term of the
Lease is hereby reduced and that the Term will now expire on April 30, 2004 (the
"Expiration Date") as opposed to January 31, 2007. In addition, the parties
hereto agree that the renewal option set forth in Article 28 of the Lease is
hereby deleted and shall no longer be applicable.
2. BASE RENT. Commencing on the Relocation Date (as herein
defined) and continuing throughout the remainder of the Term of the Lease (as
reduced hereby), Tenant shall pay Base Rent in the amounts set forth in Rider
No. 106 attached hereto, which Tenant agrees to pay to Landlord at P.O. Box
972170 Dept. Code 7001, Xxxxxx, Xxxxx 00000-0000 (or at such other place as
Landlord from time to time may designate in writing) in advance and without
demand or offset on the first day of each calendar month commencing May 1, 2002
and continuing during and throughout the remainder of the Term. In addition,
Rider No. 106 attached hereto and incorporated herein shall supersede all prior
schedules of Base Rent attached to or included in the Lease. Landlord agrees
that it shall promptly credit any overpayment of Base Rent made by Tenant on
April 1, 2002, to the extent of such overpayment for the period of time from the
Relocation Date to April 30, 2002, against future charges payable by Tenant
under the Lease. With regard to Tenant's payment of
Additional Rent, effective on the Relocation Date the ratio shall be reduced to
1.7% of Operating Expenses.
3. RELOCATED PREMISES. Effective on the Relocation Date, which
shall be defined as 11:59 p.m. CST on May 7, 2002, Landlord hereby leases to
Tenant 9,495 square feet of rentable area (the "Relocated Premises") situated
at 0000 Xxxxxxxxx Xxxxx, Xxxxx XX-000 of the Building and more particularly
described on the floor plan attached hereto as Exhibit "A." Effective on the
Relocation Date, the defined term "Premises," when used in the Lease, as
amended by this Fifth Amendment, shall hereafter be deemed to mean and refer
to the Relocated Premises. Notwithstanding the definition of "Relocation
Date," Landlord agrees that as to Tenant's existing data center
(approximately 3,500 square feet) as shown more particularly on Exhibit "J"
attached hereto, Tenant shall have until 11:59 p.m. CST on May 12, 2002 to
relocate such data center. In addition, Tenant acknowledges that any rights
under Article 29 (Expansion) of the Lease shall no longer be applicable
following the Relocation Date and that Article 29A (Storage Space) of the
Lease shall no longer be applicable following the Relocation Date. If Tenant
fails to vacate the Original Premises by the Relocation Date, or if Tenant
fails to vacate its existing data center within five days after the
Relocation Date, Tenant will pay a penalty to Landlord to compensate Landlord
for its losses suffered as a result of such delay. Such penalty shall be paid
in seven (7) equal monthly installments totaling the sum of the Base Rent on
the Original Premises for a period of seven months. This payment is in
addition to the Relocated Premises Fee described in Paragraph 4 below which
shall be payable as set forth therein. Such penalty payments shall begin on
May 1, 2002 and continue through November 1, 2002. Notwithstanding the
foregoing, if Tenant's failure to vacate the Original Premises or its data
center by the referenced dates is due solely to the actions or inactions of
Landlord (excluding any contractor delays or other delays by Tenant or its
agents), Tenant shall not incur the aforementioned penalty; provided,
however, that in all events Tenant will remain liable for the payment of the
Relocated Premises Fee. All payments that are due pursuant to the terms of
Paragraph 3 and 4 of this Fifth Amendment shall constitute rent, such that
Tenant's failure to pay same shall constitute a monetary default under the
Lease.
4. ORIGINAL PREMISES. Landlord and Tenant do hereby agree with
the execution of this Fifth Amendment that on or before the Relocation Date,
Tenant will vacate and surrender its original Premises of 77,116 Net Rentable
Area located in Suite 2000 of the Building (the "Original Premises") in
accordance with the surrender provisions set forth in Section 19.01 of the
Lease. Tenant shall pay to Landlord a Relocated Premises Fee equal to two (2)
months of Base Rent for the Original Premises. The Relocated Premises Fee shall
be paid in equal installments of $94,788.42. The initial installment will be
paid on June 1, 2002; the second and final installment will be paid on August 1,
2002. Landlord hereby agrees to surrender toTenant on the Relocation Date, all
furniture, fixtures and equipment ("FF&E") located in the Premises as of the
date hereof, excluding the equipment identified in EXHIBIT "I" hereto. Effective
upon the Relocation Date, Tenant hereby assigns, transfers, sets over and
delivers to Landlord all of Tenant's rights, title and interest in and to any
and all leasehold improvements in the Original Premises and any other property
remaining in the Original Premises as of the Relocation Date and this provision
shall constitute a xxxx of sale under applicable Texas law.
5. INSTALLATION OF IMPROVEMENTS. As an additional condition of
this Fifth Amendment whereby Landlord is agreeing to allow Tenant to lease the
Relocated Premises and significantly
reduce the square footage of the Original Premises, Tenant agrees that on or
before the Relocation Date, Tenant, at Tenant's sole cost and expense, will
install or cause to be installed in Suite LL-250 physical improvements
aggregating at least $150,000.00, in accordance with Tenant's architectural
plans as approved by Landlord. All such tenant improvements will be subject
to the prior written approval of Landlord. In addition, all such improvements
will be completed in a good and workmanlike manner, lien-free, and the
construction of same will comply with all Building construction guidelines
and policies, including, without limitation, Landlord's prior approval of the
general contractor and subcontractors before any work commences. Tenant
acknowledges that the terms of Article 3 of the Lease shall not be applicable
to the build-out of the Relocated Premises and are hereby deleted in their
entirety.
6. TERMINATION FOR THE CONVENIENCE OF TENANT. Provided there is
no Event of Default under the Lease which has not been cured or waived, and
Tenant has complied with all of the terms and provisions of this Agreement or
such failure to comply has been cured or waived, Tenant may cancel the Lease
without penalty effective at any time after April 30, 2003, upon one hundred and
eighty (180) days' prior written notice to Landlord.
7. FUTURE RELOCATION OF PREMISES. Landlord reserves the right to
designate another location in the Building for the Premises at any time during
the Term, and if Landlord elects to so designate a new location for the
Premises, Tenant will vacate the old Premises and move into the new Premises
(which will contain substantially the same number of square feet of Rentable
Space as the old Premises) when the finish-out improvements therein are
substantially completed; provided, however, that Tenant shall be notified in
writing at least thirty (30) days prior to said relocation, and Landlord shall
pay all reasonable out-of-pocket moving expenses and all reasonable expenses for
redesigning and constructing the new Premises in a manner reasonably comparable
to the design of the old Premises.
8. PARKING. Following the Relocation Date, Tenant shall only be
permitted to utilize one (1) covered reserved parking space. All other parking
rights shall be reduced based upon Article 22 of the Lease, except that the
parking ratio set forth in Article 22 of the Lease shall be based upon a formula
of five (5) parking spaces per 1,000 square feet of Net Rentable Area in the
Relocated Premises.
9. UTILITIES. Following the Relocation Date, Tenant's rights
under Article 7 of the Lease, Section 7.02, third paragraph to certain utility
services set forth in the Lease, as modified by the Second Amendment to the
Lease, shall be further modified as follows: Landlord shall allow Tenant a
connected load of up to 75 kva (at 480 volts) of UPS power. Tenant will be
responsible for an allocated share of the costs of maintenance and repairs for
the UPS. Such allocation will be calculated based on Tenant's pro rata usage, as
a percentage of total UPS used, basis. Notwithstanding anything to the contrary
herein, to the extent that Tenant's connected load exceeds 20 kva of UPS power,
Tenant shall reimburse Landlord at a rate of $50.00 per kva per annum, payable
on a monthly basis upon Landlord's billing.
10. ACCESS. Tenant agrees to provide unlimited and unrestricted
access during the hours between 8:00 a.m. and 5:00 p.m. Monday through Friday to
MFS, another tenant in the Building who maintains a telephone closet which will
only be accessible through the Relocated Premises. If
Tenant fails to provide such access, or if MFS needs access at a time other
than between 8:00 a.m. and 5:00 p.m. Monday through Friday, Landlord shall be
permitted to make such access through Tenant's space available to MFS on an
as needed basis; provided, however, that Landlord or Landlord's agent shall
accompany MFS at all times such access is being utilized by MFS. At no time
shall Landlord give MFS either unescorted access or a key to the Relocated
Premises.
11. NO CONCESSIONS. Tenant understands that, Landlord shall have
no obligation to provide any concessions such as tenant improvements or pay any
brokerage commissions in connection with the execution of this Fifth Amendment,
and Tenant hereby indemnifies Landlord for any brokerage commission alleged by
any party as a result of the execution of this Fifth Amendment.
12. NO DEFENSES; NO REPRESENTATIONS OR WARRANTIES; RATIFICATION.
Landlord and Tenant hereby acknowledge, confirm and agree that, as of the date
of this Fifth Amendment, no disputes exist between Landlord and Tenant, neither
Landlord nor Tenant is in default under the terms of the Lease and the Lease is
in full force and effect. Tenant hereby further acknowledges and agrees that, as
of the date of this Fifth Amendment, Tenant has no claims against Landlord and
has no defenses or offsets to the full and timely performance by Tenant of each
of its duties and obligations under the Lease, whether monetary or otherwise.
Tenant hereby further acknowledges that neither Landlord nor any agent or
representative of Landlord has made any representation, warranty, assurance or
covenant as to the physical characteristics of the Relocated Premises. Further,
Tenant represents and warrants to Landlord that Tenant has conducted all such
investigations as are necessary or appropriate to confirm the acceptability of
the physical condition and characteristics of the Relocated Premises, the size
and dimensions of the Relocated Premises and the suitability of the Relocated
Premises for Tenant's intended use, and that Tenant is not relying upon or
otherwise basing its decision to lease the Relocated Premises on any
representations or warranties as to such matters made by or on behalf of
Landlord. Except as herein provided, all of the provisions of the Lease shall
remain in full force and effect as previously written. If any provisions of this
Fifth Amendment and any provisions of the Lease shall conflict, then the
provisions of this Fifth Amendment shall govern.
13. CONTINGENT ON OTHER LEASE. Tenant acknowledges that the
terms and provisions of this Fifth Amendment are subject to Landlord's
execution of a lease for the Original Premises with another tenant on or
before April 9, 2002, on terms and conditions acceptable to Landlord in
Landlord's sole discretion. In the event such agreement is not consummated by
that date, the terms and provisions of this Fifth Amendment shall be
automatically null and void.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth
Amendment to Lease Agreement as of the ___ day of April, 2002.
LANDLORD:
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WIREDZONE PROPERTY, L.P.
By: WiredZone Property GenPar, LLC,
its general partner
By: AP-Xxxxxxxx, X.X.,
its manager
/s/ XXXXXX X XXXXXX President
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Xxxxxx X Xxxxxx
TENANT:
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TELESCAN, INC.
/s/ XXXX X XXXXXXXX Chief Financial Officer
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Xxxx X Xxxxxxxx
